Steve will be joined by Eric Rothschild, his co-counsel in the noted case of Kitzmiller v. Dover Area School District, and journalist Lauri Lebo, who covered the trial and later wrote a book about the experience, The Devil in Dover An Insider’s Story of Dogma v. Darwin in Small-Town America. Together, they will make a presentation entitled Wandering 40 Days in the High Profile Case Desert: What to Consider When the Media is an Interested Party. Their presentation will be part of a larger CLE to commemorate the 13th anniversary of the Kitzmiller case. Other program highlights include mock argument and discussion of the outcome of Kitzmiller and a review of the ethical issues and other considerations.

The program will take place at the Delaware State Bar Association, 405 N. King St., Suite 100, Wilmington, DE.

The trial was scheduled to begin on October 29. The case survived motions to dismiss in the trial court, two trips to the 9th Circuit, and a prior stay request in the Supreme Court, which it unanimously denied on July 30, 2018.

The government sought the stay claiming irreparable harm from being forced to participate in a trial scheduled to last 50 days that it claims is inconsistent with Article III and the separation of powers under the Constitution and allegedly violates the law in other respects.

The trial was expected to feature numerous experts testifying about a wide range of topics, including the impacts of climate change on ocean chemistry, sea level, glaciers, terrestrial ecosystems, and human physical and mental health as well as the technical and economic feasibility of transitioning to renewable sources of energy and sequestering carbon from the atmosphere.

Effect of Stay on Trial

The stay order is temporary. It lasts until after the plaintiffs file a response on October 23 and further order of the Court. Theoretically, this means the Court is only staying the case to give itself time to decide whether to issue a longer stay of the case.

The stay order will make it very difficult if not impossible for the trial to begin on October 29 or anytime soon. This will have the practical effect of preventing the plaintiffs from commanding national news attention for a lawsuit about the science and danger of climate change. Coming just days before the November 6 election, some will claim that the five conservative justices are playing politics.

The timing of the stay is particularly hard on the plaintiffs, given that the case is over three years old. According to a plaintiffs’ press release, their 20 experts, all working pro bono, have already booked their travel to be in Oregon for trial. Plaintiffs’ experts include Nobel Laureate Joseph Stiglitz and renowned climate scientists including Dr. Kevin Trenberth, Dr. Ove Hoegh-Guldberg, and Dr. Eric Rignot.

Main Allegation and Relief Sought

The plaintiffs allege that, through the government’s affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources. They seek declaratory and injunctive relief, including an order requiring the U.S. government “to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.”

What Happens Next

It will be noteworthy if the Court issues any order before October 29. If the Court as a whole issues an order before then denying the stay, the trial could begin on or soon after October 29. Otherwise, the parties and the trial court will have to shelve the plan for the trial until the Court rules, which could take weeks. Either way, court watchers will look first to see how the justices voted on this case, which stands as a proxy for concern about climate change.

Our Children’s Trust

The plaintiffs’ legal team is led by Our Children’s Trust, a nonprofit organization based in Eugene, Oregon. Its mission is to give young people a legal and public platform on the climate issue. https://www.ourchildrenstrust.org/

Steve Harvey

Steve Harvey is the founder and president of A Call to the Bar: Lawyers for Common Sense on Climate Change, a nonpartisan, nonprofit group of lawyers, law professors, law students, and citizens dedicated to using the law to secure the rights of all people to a healthy and sustainable planet earth.

The issue is called advancement of fees and expenses, and it can make or break a lawsuit for the client, the plaintiff’s counsel, and the business lawyer who had the foresight to include it in the operative contract. Here’s why.

Indemnification for Corporate Agents

Under corporation statutes in Delaware and most other states, when a claim is brought against a corporate employee, officer, or director (“agent”) that arises of out the of agent’s status as employee, officer, or director, if the agent defends the case and wins, the corporation is obligated to reimburse the agent for all attorney’s fees and costs incurred defending the claim.

This includes all types of claims—e.g., breach of fiduciary duty, sexual harassment, even allegations of criminal misconduct—as long as the claim arises out of the relationship with the corporation.

The standard for “arises out of” is very broad. Essentially it means that but for the agent’s relationship to the corporation they would not be facing the claim.

The only other limits are that the agent’s fees and costs must be reasonable, which is also broad and would include the hourly rates of lawyers at a good law firm, and the agent must prevail.

Indemnification Can Be Meaningless Without Advancement

Here’s the rub. To get to the point of prevailing, the corporate agent has to pay the lawyers’ invoices out of her own pocket. That could cost easily tens or hundreds of thousands of dollars. As a result, the right to indemnification is, in many cases, meaningless, unless the agent can convince a lawyer to represent them with the promise of being paid at the end of the lawsuit, assuming the agent prevails. Not many lawyers will take that risk. This is where advancement comes in.

Permissive Advancement

The corporation statutes that provide for indemnification also provide that the corporation may pay for the legal fees and costs of claims against corporate agents as the fees and costs are incurred. This is called permissive advancement, and it enables the folks who run the corporation to pay for the defense costs of themselves and members of their team facing lawsuits, provided that the agent denies the allegations and agrees in writing that she will pay back all of the fees and costs if she loses the lawsuit.

That’s all well and good if the agent is on the good side of the people who run the corporation, but what if that is not the case, such as when it is the corporation making the claim against the agent?

Mandatory Advancement

To protect against this situation, and to incentivize qualified people to work for corporations, those same statutes permit corporations to enter into agreements requiring them to pay attorney’s fees and expenses in advance of the conclusion of the lawsuit, as they are incurred. What are the requirements for mandatory advancement?

The contract must contain clear language requiring advancement.

The claim must arise out of the agents’ status as corporate agent.

The agent must deny the claim.

The agent must agree in writing to reimburse the fees and expenses if they lose the lawsuit.

Mandatory advancement provisions are enforceable in summary enforcement proceedings that can be brought in any state or federal court with jurisdiction; they are often brought in Delaware Chancery Court and federal district courts in Delaware and New York.

Practical Importance of Mandatory Advancement

Litigation about advancement almost always arises when the corporation and the agent have become adverse. In addition to funding the defense of the litigation (and the prosecution of the advancement claim), success on an advancement claim provides a powerful incentive for the corporation to settle or drop the claim against the agent.

Practice Pointer

There is an extensive body of law on the rights of advancement and indemnification. The prudent client will consult experienced counsel considering such a provision in a contract or when facing a lawsuit involving a corporate agent with allegations of wrongdoing that arose out of their corporate statute. But the main thing for those of us who get paid to spot issues is this: when drafting or reading an indemnification clause in any corporate contract, including not just employment contracts but also purchase and sale contracts, look for the magic language requiring the corporation to advance fees and expenses as incurred. It can make all the difference if the relationship later goes sour.

Steve Harvey

The lawyers at Steve Harvey Law have extensive experience litigating advancement and indemnification issues. Check out the decision of U.S. District Judge Jed Rakoff in one of our recent cases: Ryu v. Hope Bancorp, Inc., 2018 WL 1989591 (April 26, 2018)

Testimony by scientific experts plays a key role in criminal and civil cases throughout the U.S. Yet it is an area that is continually evolving as cutting-edge scientific procedures are developed and new ethical questions are raised.

Villanova University Charles Widger School of Law and the Science History Institute bring together top scholars and experienced practitioners in evidence, psychology, economics and ethics to tackle some of the field’s most pressing issues in a symposium entitled “Scientific Expertise in the Courtroom.” Topics of discussion include the crisis in forensic science; the standards for admissibility of expert testimony, including statistical estimation evidence; the problem of bias in expertise; the ethical dilemmas of attorneys drafting expert reports; and the ethical challenges when consulting experts become testifying experts.

The event takes place on Thursday, March 29, 2018 from 9 a.m. to 12:30 p.m. at the Science History Institute (315 Chestnut Street, Philadelphia). The program is approved by the Pennsylvania Continuing Legal Education board for 2 substantive CLE credits and 1 ethics CLE credit.

Jules Epstein, Director of Advocacy Programs, Temple University Beasley School of LawJennifer Gentile Long, CEO, AEquitas: The Prosecutors’ Resource on Violence against WomenKevin Todorow, JD Candidate, Temple University Beasley School of Law

Moderated by David S. Caudill, Professor of Law and Arthur M. Goldberg Family Chair, Villanova University Charles Widger School of Law

A decision issued by federal Judge Edward G. Smith in Pennsylvania last Friday confirms our faith in the ability of the legal system to get it right. The issue was whether 5 students living in Lancaster County, Pennsylvania, who came from Somalia, Sudan, Democratic Republic of Congo, and Burma had a right to attend a school run by the Lancaster County School District that includes a program to teach English to non-English speakers. The School District forced the children to attend a separate, academically inferior high school run by a for-profit corporation under contract with the School District. None of the students speaks English. All instruction at the separate school is in English. Judge Smith said that “[o]n its face, this practice appears to be counterintuitive; expert testimony confirmed that the practice was unsound.”

Judge Smith held that the students had made out a strong case that the School District had violated state and federal law and issued a preliminary injunction in their favor. Speaking of the students, he said: “They all escaped violence and tumult in their home and other lands. Now in America, all earnestly seek to learn English, advance their education, and contribute to society.”

We never applaud judges for getting it right, because that’s their job, but we are grateful. We are also grateful to the Education Law Center, the ACLU of PA and the law firm of Pepper Hamilton for bringing the case on a pro bono basis. Anyone who would like to read Judge Smith’s decision can find a copy here (https://www.aclupa.org/download_file/view_inline/2806/1030/).

Surely the most salacious legal development of 2016 (so far) is Hulk Hogan’s $140 million verdict in March from a Florida court against the online media company and blog network Gawker Media LLC for publishing a video of him having sex with the wife of his then friend, a radio personality by the name of “Bubba the Love Sponge Clem.” Gawker’s conduct must have angered the jury. It didn’t help when a former Gawker editor acknowledged at trial that he had said at his deposition that there would be a public interest in promoting child pornography of the children of celebrities if they were over the age of four, but claimed that he was just being sarcastic. The case took on renewed interest with the disclosure in late May that billionaire tech investor Peter Thiel provided $10 million in litigation funding for Hulk (real name Terry G. Bollea) to get revenge against Gawker for outing him as gay several years ago.

The prurient aspect of the case of course sells newspapers and drives clicks, but the case also raises the issue whether the First Amendment interest in Gawker’s publication of a video about a public figure outweighed Hulk’s interest in privacy. We leave that issue for others to discuss and for the appeal. Our interest in is the nuts and bolts of how the plaintiff’s legal team got the jury to award $140 million verdict in a single plaintiff case not involving death or serious bodily injury.

The case was originally filed in October 2012 and took over three and a half years to get to a trial. The trial lasted two weeks. The cause of action was not defamation. It was intentional infliction of emotional distress and invasion of privacy. The jury awarded $55 million in economic damages based on expert testimony that Gawker had been enriched by all of the site traffic drawn by the video, $60 million in emotional distress damages based on the testimony of Hulk and one other fact witness about the emotional distress Hulk felt, and $25 million in punitive damages in a second deliberation. The collectability of the verdict is unknown, although media reports have suggested that the case and other pending defamation cases against Gawker threaten its existence. Gawker has already begun the appeal.

The takeaway for those who follow litigation as a matter of business is that in today’s litigation climate, large jury verdicts can be expected—even without death or bodily harm—where harm to economic, reputational, or emotional interests arise out of proven misconduct. Punitive damages are not necessarily the key to a large recovery; economic damages can result in large verdicts and emotional distress damages in particular can be significant because they are unlikely to be disturbed by the trial court or on appeal. We don’t hear about these cases all that often because they settle or because plaintiffs cannot afford or find litigation counsel ready to bring the case to trial. Whether or not the Gawker Media verdict stands on appeal, the message to defendants who inflict economic and emotional harm on others is clear: beware the consequences when the case finally gets to the jury.

On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act (DTSA), which provides a federal cause of action for trade secret misappropriation. Prior to the DTSA, plaintiffs seeking to enforce trade secrets rights relied exclusively on state law; most states have adopted the Uniform Trade Secrets Act (UTSA).

With limited exceptions, the rights granted under the DTSA are the same as under the UTSA. The basis for liability is the same. The damages are the same. Both the UTSA and the DTSA permits the recovery of enhanced double damages and attorneys’ fees for willful misappropriation of trade secrets.

One difference is that the DTSA provides immunity to whistleblowers who disclose trade secrets to law enforcement officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. The DTSA provides immunity to parties who disclose a trade secret in a lawsuit, if the disclosure is made in a filing made under seal. The DTSA also requires employers to provide notice of this immunity in a contract or agreement with an employee that governs the use of trade secrets. Employers who fail to provide such notice are barred from recovering enhanced damages and attorneys’ fees.

Note to practitioners: employers who are concerned about the potential for trade secret misappropriation will want to update their policy manuals, employment contracts, or other employment materials to give the notice required by the DTSA if they want to take advantage of the possibilities for recovering enhanced damages and attorneys’ fees.

Another difference is that the DTSA forecloses the possibility of injunctive relief based on the inevitable disclosure doctrine. The DTSA requires evidence of threatened misappropriation before an injunction will issue. This differs from the law in many states, which authorize injunctive relief where use or disclosure of trade secrets is inevitable even if not yet proved.

Unlike the UTSA, the DTSA provides for ex parte civil seizure in extraordinary circumstances. Courts can issue seizure orders where the party against whom the seizure would be ordered misappropriated or conspired to misappropriate the trade secret at issue and is in possession of the trade secret. Such orders are appropriate where an injunction is insufficient because the party against whom the injunction order would be issued would not comply with the order.

The Bottom Line—Trade Secret Plaintiffs Can go to Federal Court if They Want

The differences between the DTSA and the UTSA will only matter in rare cases, with one exception: the right to bring suit in federal court. The DTSA ensures that every plaintiff who wants to bring a trade secrets claim in federal court can do so. But if there is no other basis for federal court jurisdiction (such as diversity of citizenship), a plaintiff can file in state court and avoid removal to federal court simply by pleading a state law trade secrets claim without reliance on the DTSA. This option to proceed in federal court now provides an important advantage for plaintiffs in trade secrets cases.

In an effort to address the ongoing student loan crisis, Connecticut has become the first state to enact a student loan bill of rights. This law will serve as way to more closely monitor the lenders in this industry, as well as provide student borrowers with necessary education and resources.

The law creates a Student Loan Ombudsman who will resolve complaints, analyze data, and provide more education to borrowers. Education courses will be created for borrowers so they are better able to understand their rights and responsibilities associated with the debt.

It is abundantly clear that we need more education on student loans, but we also need to shut down unscrupulous lenders and education institutions. This law will provide a centralized way to do just that.

Borrowers must be better informed about their rights and options so they can make sound financial decisions as they embark on the path to higher education. This law is a good example of what can be done at the state level to better understand and address the problem of runaway student loan debt.

Hopefully other states will follow Connecticut’s lead. The student loan crisis will not solve itself and it’s critical that the government start taking action to find workable solutions to a problem that has the potential to affect the lives of tens of millions of Americans.

Employers must continue to ensure that applicant’s religious practices are not a factor in hiring decisions. So said the Supreme Court this week. The Court ruled Monday in favor of a Muslim woman whom Abercrombie & Fitch refused to hire because she had worn a hijab—a traditional Muslim head scarf—when she interviewed for a salesperson position at a retail store in Tulsa.[1] Then-17-year-old Samantha Elauf did not mention the hijab or her religion in her interview, but the interviewer assumed she was Muslim and that she wore the hijab for religious reasons. Evidence suggested the hijab influenced the decision not to hire her because it conflicted with Abercrombie’s “look policy,” which required sales persons to wear “classic East Coast collegiate style of clothing.”

The EEOC initially won summary judgment on Ms. Elauf’s behalf, but the Tenth Circuit Court of Appeals reversed that decision, reasoning that Ms. Elauf had failed to notify Abercrombie of her need for a religious accommodation.

Writing for the majority, Justice Scalia confirmed that an applicant need not make a specific request for religious accommodation to obtain relief under Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in hiring: “Title VII forbids adverse employment decisions made with a forbidden motive, whether this motive derives from actual knowledge, a well-founded suspicion, or merely a hunch.”

Justice Scalia called it a “really easy decision.”

The decision reconfirms that an employee’s religious practices may not be a factor in employment decisions—whether or not the employer has actual knowledge, or merely presumes or suspects, that those practices are based on religious beliefs.

The Court’s vote was 8-1, with Justice Clarence Thomas dissenting. The decision is in line with the Court’s recent broad view of religious rights, following last year’s Burwell v. Hobby Lobby[2] decision in which the Court found broad religious freedom rights for corporations, and Holt v. Hobbs,[3] in which the court found that a ban on beards infringed on the religious rights of prisoners earlier this year.

For those facing foreclosure, problems persist in dealing with servicers. A recent National Consumer Law Center survey of consumer advocates and housing counselors about their experiences with the mortgage servicing industry revealed ongoing problems. These problems have been present since the financial crisis began in 2008 and unfortunately continue on today.

Successors in interest (heirs, widows, and orphans) often have trouble getting even basic information about the loan as the lender does not view them as valid parties of interest. There are unnecessary hurdles in place that prevent these cases from reaching simple resolutions that would allow the successor to resume payments, keep the home, and ensure that the loan remains performing. Resolving this problem is a win-win situation for the lender and successor, and it can be accomplished with basic changes to the system and more education to all stakeholders about current regulations and requirements.

Repeated requests from servicers for documents from the homeowner is another consistent complaint. It can be an endless cycle for the homeowner and can prevent resolutions for homeowners with the capacity to pay. The definition of a “complete package” can vary depending on a borrower’s financial circumstances, and it can be difficult to get a clear answer from a servicer about which documents are needed. Servicers often ask for documents in a piecemeal fashion, or ask for the same document repeatedly with no explanation as to why.

Mortgage foreclosure suffers from issue fatigue, but it’s important that we continue to work on this problem in an effort to stabilize families and communities. A homeowner dealing with foreclosure should seek help from an experienced advocate (housing counselor or lawyer) to assist in navigating what still proves to be a complicated process.

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The lawyers at Steve Harvey Law participate as organizers and speakers at a variety of professional and educational events in and around Philadelphia and throughout the United States. Click here to see what we have on the Calendar.